Court Stays Action over "Non-GMO" Claim, Waiting for USDA Guidance

In the Kind LLC Healthy and All Natural Litigation, the United States District Court for the Southern District of New York stayed the plaintiffs' claim that Kind deceptively marketed its products as "non-GMO." The plaintiffs alleged that Kind's "non-GMO" claims are false because Kind's products contain ingredients derived from genetically modified crops.

The court agreed to stay the plaintiffs' claim, however, until the U.S. Department of Agriculture issues guidance on these issues. The federal National Bioengineered Food Disclosure Standard law, which took effect in July 2016, requires the USDA to establish "a national mandatory bioengineered food disclosure standard with respect to any bioengineered food" by July 2018. The USDA is also required to determine "the amounts of a bioengineered substance that may be present in food, as appropriate, in order for the food to be bioengineered food."

The court stayed the "non-GMO" claim until at least August 15, 2018, to allow time for the USDA to issue the guidance. The court held that if the USDA has not taken action by then, or has not publicly provided updates regarding its progress by then, the parties can file a motion to lift the stay.

The court also continued the stay of the plantiffs' claims related to Kind's "natural" claims as well, pending FDA guidance.